Callahan v. Dean

Gilbert, J., delivered the opinion of the Court. Herman Callahan, Jr., appellant, on March 3, 1972, was found by a jury sitting in the Circuit Court for Caroline County, to be the father of a child born to Victoria Dean. Thereafter, Judge B. Hackett Turner, Jr. signed an Order dated April 5, 1972, filed on April 10, 1972, which, in essence, compelled Callahan to: (a) pay the sum of $20.00 per week “toward the cost and care and maintenance” of the infant child, (b) pay $123.00 per month for “estimated” medical expenses,' (c) reim ⁶⁹ burse the Caroline County Department of Social Services “for public assistance payments made to Victoria Dean prior to March 3, 1972” in the amount of $720.00, and (d) reimburse the Caroline County Department of Social Services in the sum of $3,316.75 for “all medical, doctor and hospital expenses incurred to March 3, 1972 . . . as the result of the birth of [the child].” All payments were to be made through the Division of Parole and Probation. A “Bill of Review” 1 was filed by Callahan on April 17, 1972 to the proceeding.

On May 4, 1972, while the “Bill of Review” was pending, Callahan noted an appeal to this Court. Subsequently, on May 10, 1972, a hearing was held before Judge Turner, who, after expressing the opinion that the appeal divested the Circuit Court for Caroline County of jurisdiction over the matter, nevertheless allowed testimony to be presented on the “Bill of Review.” At the outset, Judge Turner informed counsel that he had no intention of changing the Order, and after the hearing he did not alter it. Counsel for both the appellant and the appellee, on August 4, 1972, entered into a “Joint Stipulation” which was filed directly in this Court. The stipulation provides in pertinent part: “1.

That the appeal in this case is being taken only with reference to the Order of Court handed down by the Honorable B. Hackett Turner, Jr., Associate Judge of the Second Judicial Circuit of Maryland, on April 10, 1972, and upon which hearing on the Bill of Review was held on May 10, 1972 and modification denied the defendant. * * * 3. That in view of this, the parties agree that ⁷⁰ full explanation of the Court’s verdict and the reasons therefor are set forth in hearing on Bill of Review held May 10,1972, and that transcript of the testimony and argument made at this hearing contains the relevant material pertaining to this appeal, and no transcript of additional testimony is necessary.” The Court of Appeals in Vancherie v. Siperly, 243 Md. 366, 375 , 221 A. 2d 356 (1966), said: “. . . [A]n appeal having been entered, the lower court lacked jurisdiction to take any further action in the case with respect to the subject matter of the appeal until the receipt of the mandate from this Court after the appeal had been heard and decided. This is so because the perfection of the appeal brought the subject matter of the appeal within the exclusive jurisdiction of this Court and suspended the authority of the lower court over it during the pendency of the appeal.” In the instant case, the filing of the appeal to this Court divested the trial court of jurisdiction over the subject matter of the Order. Stacy v. Burke, 259 Md. 390 , 269 A. 2d 837 (1970); State v. Jacobs, 242 Md. 538 , 219 A. 2d 836 (1966); Bullock v. Director, 231 Md. 629 , 190 A. 2d 789 (1963); Visnich v. Washington Suburban Sanitary Comm., 226 Md. 589 , 174 A. 2d 718 (1961); Moore v. State, 15 Md. App. 396 , 291 A. 2d 73 (1972); Raimondi v. State, 8 Md. App. 468 , 261 A. 2d 40 (1970).

It is obvious from the “Joint Stipulation” that neither party has here raised the question of jurisdiction of the trial court to hear the “Bill of Review.” Nevertheless, that question may be, and in this case is, considered by us sua sponte. Stacy v. Burke, supra; Moore v. State, supra. Since the trial court lacked jurisdiction to hold the hearing on the “Bill of Review” at the time at which it ⁷¹ did, the hearing was a nullity, and the testimony received thereat of no force and effect. Consequently, we shall not recognize the “Joint Stipulation” of the parties nor shall we endeavor to cull from the transcript of the “hearing” of May 10, 1972 facts upon which the appellant would seemingly ground his appeal from the Order of April 10, 1972.

The attempted stipulation of facts based on a jurisdictionally defective hearing does not adequately present to this Court the issues sought to be raised. In